Family Abandonment – Legal Obligation

Since ancient times, the family has been the main nucleus for the formation and development of the human personality. It is still today a pillar in ensuring its members’ harmonious physical, psychological, and emotional development. Both in Romania and the countries of the contemporary world, particular attention is paid to the protection of the family and the social relations established between its members, and legal protection is established for them through the provisions of the Criminal Code.

Thus, compliance with the obligation of solidarity and the provision of material and moral support goes beyond the general and abstract concept and requires the actual provision of means of support to the person in need.

Family Abandonment – Legal Obligation

According to Article 378 of the Criminal Code, family abandonment consists of “the commission of one of the following acts by the person who has the legal obligation to support the person entitled to support:

1. desertion, banishment or leaving without help, exposing him to physical or moral suffering
2. failure, in bad faith, to comply with the maintenance obligation laid down by law
3. the non-payment, in bad faith, for three months of maintenance determined by a court of law”.

Moreover, in the ways outlined above, this offence can only be committed by persons who have a legal obligation to maintain, respectively:

• between spouses;
• between relatives in the direct line (parents and children/grandparents and grandchildren/relatives resulting from adoption);
• between collateral relatives of the second degree (brothers and sisters/relatives resulting from adoption);
• between former spouses whose marriage was dissolved by divorce if one of the spouses had an accident before/during/within 12 months of the end of the marriage;
• between former spouses whose marriage has been dissolved, but at the conclusion of which at least one of them was in good faith;
• by the person who has taken a minor to raise him/her, if the child’s natural parents have died/are missing/are in need, without drawing up the forms required by law for adoption;
• by the spouse who has contributed to the maintenance of the child, the other spouse is obliged to provide further maintenance for the child while the child is a minor (when the conditions listed above are met);
• by the heirs of the person who was obliged to maintain a minor or who, without being under a legal obligation to do so, provided maintenance for the minor.

Materialization of the Crime of Family Abandonment

At the same time, in order to provide a clearer picture of how this offence may materialize, we would like to state the following:

• Abandonment – is an action of departure/removal from the home of the person entitled to maintenance, leaving the person in need of maintenance without the means to support him or her; abandonment also means leaving the common home/near the home of the person entitled to maintenance, leaving him or her without the means to support him or her, or abandoning him or her in a certain place;
• Eviction – is an action of eviction/removal of the person entitled to maintenance from his/her home;
• Leaving without support – this consists of the perpetrator taking a passive, inactive attitude, refusing to provide the support needed by the person entitled to support, including when the person suffers from a disability/illness requiring treatment;
• Bad faith non-performance – is the adoption of a passive attitude on the part of the person obliged by a judgment to provide periodic benefits;

For the offence of family abandonment, the penalty is imprisonment for a term of 6 months to 3 years or a fine, which also applies in the event of the convicted person’s failure to pay, in bad faith, the periodic benefits established by a court decision in favour of persons entitled to maintenance from the victim of the offence.

On the other hand, the injured party must make a prior criminal complaint to initiate criminal proceedings. Concerning the time limit for filing the initial complaint, the High Court of Cassation and Justice was informed by the Court of Appeal of Constanța – Criminal Division and for criminal cases involving minors and family matters, in Case No 11.252/256/2017, that the time limit for filing the preliminary complaint for this offense is 3 months from the day on which the injured party or his/her legal representative learns of the commission of the offense. At the same time, it should be noted that this time limit can run from three different moments, as follows:

• from the time of the commission of the offense, if that time is the same as the time of knowledge of the offense, or
• from the moment of knowledge of the commission of the offense, which may be between the moment when the offense is committed, and the moment when it is exhausted, or
• from the time when the offense was completed or afterward when the offense was known to have been committed, in which case the limitation period for criminal liability need not have expired.

However, the legal framework specifies the following: if the defendant fulfills his obligations – until the end of the criminal proceedings – his act will not be punished. Moreover, if the defendant fulfills his obligations – until the final judgment of conviction has become final – the court may order a deferment of the sentence/suspension of the execution of the sentence under supervision (irrespective of the fulfillment of the conditions laid down by law for the application of these solutions).

Last but not least, Law No 272/2004 on the protection and promotion of the rights of the child, amended and supplemented by Law No 257/2013, provides that, in the case of children abandoned by persons who had a legal obligation to support them, certain special protection measures may be ordered, any natural or legal person, as well as the child, having the possibility to refer the matter to the General Directorate for Social Assistance and Child Protection of the county where the child is domiciled.

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